- 49 -
In support of its premise that the judicial review
provisions of the APA do not apply to deficiency cases in this
Court, the majority primarily relies on O’Dwyer v. Commissioner,
266 F.2d 575 (4th Cir. 1959), affg. 28 T.C. 698 (1957).7 The
taxpayer in O’Dwyer sought to compel the IRS to produce its
entire administrative file, based in part on language in APA
section 706 directing the reviewing court to “review the whole
record”. Id. at 578-580. Perhaps out of concern that judicial
review of the “whole record” within the meaning of APA section
706 would be inconsistent with the established Tax Court practice
of not “looking behind” statutory notices of deficiency,8 the
court felt compelled to conclude that the Tax Court is not a
reviewing court for purposes of the APA. Id. at 580. The court
based that conclusion on the premise that the APA judicial review
provisions (APA sections 701-706) apply only to “formal”
adjudications (i.e., those subject to the procedures set forth in
APA sections 554, 556, and 557). Id. Given subsequent caselaw
7 The majority also cites Nappi v. Commissioner, 58 T.C.
282 (1972). In Nappi, the Court simply concluded that the Tax
Court is not an “agency” that is subject to the administrative
procedure (as opposed to judicial review) provisions of the APA
(APA secs. 551-559). Id. at 284.
8 To the extent the Court was so concerned, such concern
appears to have been unfounded. See S. Rept. 752, 79th Cong.,
1st Sess. 28 (1945); H. Rept. 1980, 79th Cong., 2d Sess. 46
(1946) (stating that the requirement of review upon the whole
record means simply “that courts may not look only to the case
presented by one party, since other evidence may weaken or even
indisputably destroy that case”).
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